Analysis: Ward Churchill And The Tension of Tenure

When a Colorado jury declared Thursday that former University of Colorado professor Ward Churchill was unfairly dismissed from his tenured post after he called 9/11 victims "little Eichmanns" — when those jurors evidently discounted compelling evidence that Churchill's academic work was otherwise far below par — it was a jarring blow sure to impact the fragile balance between free speech and academic competence.

The jury's verdict — which essentially forces the University to reinstate a professor shown by his peers to have failed to satisfy even minimal standards of scholastic excellence — suggests that tenure is not so much a marriage that can sometimes end in divorce but rather a life sentence with only a precious few opportunities for parole. And it raises an elemental question: How bad does a tenured professor have to be before he can be canned? Is plagiarism bad enough? How about too many self-referenced footnotes? How about shady ghost-writing?

There is no question that Churchill's insulting (and terribly unfair and inaccurate) comments about the victims of the terror attacks upon America caused CU to take a closer look at his academic record. I suspect that school officials had no idea just how outrageous Churchill's views were before they were made public. And there is no question that the review that followed by fellow professors and school administrators raised serious and substantial doubts about the quality and candor of his work as a writer and researcher.

But under Colorado law the latter didn't matter as much as the former. Because Churchill's protected speech (the "little Eichmanns" remark) triggered the investigation which triggered his ouster — because there was cause-and-effect between the two — jurors were required to declare that Churchill was unfairly released; that he essentially had been persecuted for views which have protected status under the law. It's an odious result; a startling example of the law of unintended consequences. Free speech rights trump competence and accuracy and integrity even in an area of our world — scholarship — where such things ought to matter most.

The University is surely to blame for the mess it finds itself in. There is no excuse for the lack of due diligence it performed upon Churchill before it granted him tenure. If school officials had investigated him as fully before they gave him the job they almost surely would have walked away from a deal. But the jury's verdict means that it's now too late to do so. Unless Churchill commits murder, or is found to be a drug kingpin, or completely stops showing up to class, CU seems stuck with him until he decides he wants to leave.

So what's the lesson for CU and other schools? Don't offer tenure. Or at least don't offer tenure until an extraordinary level of due diligence has been performed upon the candidate. Will good candidates stand for such a review? Will they be willing to be vetted like presidential nominees? Will they be willing to sign a form of "pre-nuptial" that allows the university to do what it tried to do to Churchill? It's hard to overstate the potential impact the Churchill case may have upon the intersection of law and academia. And it's hard to fathom how a professor with such a bad history of poor scholarship can find succor under the law.

(CBS)

Andrew Cohen is CBS News Chief Legal Analyst and Legal Editor. You can read more of his posts in Hotsheet here.